18‐3339‐cr United States v. Stasior

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of December, two thousand nineteen.

PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee,

v. 18‐3339‐cr

RYAN JUNGHUNX KIM, aka Ryanx Junghun Choi, aka Soo Choi, aka Lion King, HOI HAM, SUNG HWAN KIM, aka Sean Kim, YOUNG HO JOO, aka Jay Joo, MI SOOK KIM, SU YEON YUN, aka Bebe, HYUN JOO LEE, HYUN JOO SHIN, SUNG SOON KIM, aka Ying Ai Li, JIN AE JUNG, aka Jacqueline Kim, aka Jackie Kim, YOUNG JU LEE, KUEMBIN NA, HYUN JIN LEE, SANGHEE HAN, MOOJA PETERSON, aka MJ, Defendants,

DAVID STASIOR, Defendant‐Appellant ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: DANIELLE R. SASSOON, Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: HARRY SANDICK, Patterson Belknap Webb & Tyler LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Kaplan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is VACATED in

part and the case is REMANDED for resentencing.

Defendant‐appellant David Stasior appeals from a judgment of the district

court convicting him, following his guilty plea, of conspiracy to commit money

laundering in violation of

(h). The district court sentenced Stasior

principally to a term of imprisonment of one year and a day and four yearsʹ supervised

release, with a special condition that he perform twenty hours of community service per

2 week throughout the term of supervised release. Stasior argues that the district court

committed reversible error by imposing a term of supervised release in excess of the

statutory maximum, and by imposing as a special condition of supervised release that

he perform twenty hours of community service each week for the entire period of

supervised release. The government concedes error as to the term of supervised release

and agrees that the case must be remanded for resentencing, but argues that plenary

resentencing is warranted. Stasior opposes plenary resentencing, and argues that

resentencing should be limited to correcting the term of supervised release and the

special condition of community service. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

We review a sentence under a deferential abuse of discretion standard.

See United States v. Betts,

(2d Cir. 2018). Likewise, ʺ[w]e review the

propriety of a condition of supervised release for abuse of discretion.ʺ United States v.

Parkins,

(2d Cir. 2019).

Stasior, a doctor, allocuted to providing financial assistance and business

advice over a three‐and‐a‐half‐year period to the owner of what he knew was an illegal

prostitution business. Moreover, the evidence presented by the government in

connection with sentencing showed that Stasior made loans to individual prostitutes

and then used these loans to pressure the women to continue their involvement in

prostitution to repay him and to extract sexual services from them. The Presentence

3 Investigation Report (the ʺPSRʺ), which was adopted by the district court,

recommended a guidelines range of 30‐37 monthsʹ imprisonment and one to three

yearsʹ supervised release. At sentencing, Stasior asked the court to consider alternatives

to incarceration, observing that he ʺhas the ability to do an enormous amount of

community service . . . . The Court could put him to task and say you owe me, you owe

society, another thousand hours of work. Weʹll take that.ʺ Appʹx at 235. The

government sought an above‐guidelines sentence.

Three issues are presented on appeal: (1) whether the district court

committed plain error in imposing a four‐year term of supervised release; (2) whether

the community service special condition was procedurally or substantively

unreasonable; and (3) whether, if the case is remanded, resentencing will be plenary or

limited to addressing the term of supervised release and the disputed community

service special condition.

I. Term of Supervised Release

Stasior argues that the district court committed plain error by imposing a

four‐year term of supervised release when the statutory maximum term is three years.1

The PSR reflected the three‐year statutory maximum. The government agrees that the

sentence was imposed in violation of law and that resentencing is required because the

1 Based on the maximum term of imprisonment, conspiracy to commit money laundering is a Class C offense, which carries a maximum term of three yearsʹ supervised release. See

(b)(2). 4 term of supervised release exceeds the statutory maximum. Accordingly, we hold that

the district court plainly erred when it imposed a sentence in excess of the statutory

maximum, and we vacate the sentence as to the term of supervised release and remand

for resentencing consistent with the relevant statute.

II. Condition of Supervised Release: Community Service

Stasior further argues that the condition that he perform twenty hours of

community service per week throughout his term of supervised release, amounting to

4,160 hours over four years, was substantively and procedurally unreasonable. A

sentence is procedurally unreasonable, inter alia, when the court fails to calculate or

miscalculates the Guidelines range, does not consider the factors in

(a),

or rests its sentence on a clearly erroneous finding of fact. See United States v. Cavera,

(2d Cir. 2008) (en banc). ʺWhere there is a variance from the

Guidelines range . . . a major departure should be supported by a more significant

justification than a minor one.ʺ United States v. Singh,

(2d Cir. 2017)

(internal quotation marks and alterations omitted). Because we agree that the sentence

was procedurally unreasonable, we need not reach the issue of substantive

reasonableness. See United States v. Juwa,

(2d Cir. 2007).

Courts have discretion to impose special conditions of supervised release

to the extent they are ʺreasonably relatedʺ to: (A) ʺthe nature and circumstances of the

offense and the history and characteristics of the defendantʺ; (B) ʺthe need for the

5 sentence imposed to afford adequate deterrence to criminal conductʺ; (C) protection of

the public; and (D) the defendantʹs rehabilitative needs. U.S.S.G. § 5D1.3(b). Further, a

special condition must not involve any ʺgreater deprivation of liberty than is reasonably

necessary,ʺ and it must be ʺconsistent with any pertinent policy statements issued by

the Sentencing Commission.ʺ Id.

The Guidelines also provide guidance as to the requirement of community

service as a special condition: ʺCommunity service generally shall not be imposed in

excess of 400 hours.ʺ U.S.S.G. § 5F1.3 cmt. n.1. In a decision issued subsequent to

Stasiorʹs sentencing, we explained that the Sentencing Commissionʹs pertinent policy

statement ʺmust be read to advise that courts should generally refrain from imposing

more than a total of 400 hours of community service as a condition of supervised

release.ʺ United States v. Parkins,

(2d Cir. 2019).

The district court discussed two of the relevant § 3553(a) factors at

sentencing: (1) ʺthe nature and circumstances of the offense and the history and

characteristics of the defendantʺ; and (2) ʺthe need to avoid unwarranted sentencing

disparities.ʺ

(a)(1), (a)(6). As to first factor, the district court observed

that ʺnot oneʺ of the criminal defendants it had sentenced in nearly twenty‐five years on

the bench ʺapproached the intellect or the advantages in life of Dr. Stasior, and not one

was better situated to know that the path he embarked on was criminal.ʺ Appʹx at 254.

The district court further acknowledged, however, that any sentence ʺimpose[d] an

6 entirely undeserved horrorʺ on Stasiorʹs wife, who suffers from serious medical

conditions and is ʺblameless.ʺ Appʹx at 256. As to the second factor, the court observed

ʺthe need for some appropriate relationship between the sentences imposed on many of

the other defendants in this case,ʺ particularly in light of Stasiorʹs ʺvastly preferable

circumstances.ʺ Appʹx at 255. Given the significant upward departure from the general

threshold ‐‐ more than ten times the recommended 400‐hour limit, see Singh,

‐‐ and in light of our recent guidance in Parkins, a more comprehensive justification

was warranted. Accordingly, we remand to the district court for resentencing

consistent with Parkins.

III. Plenary Resentencing

The parties disagree as to the scope of resentencing. We agree with the

government that plenary sentencing is warranted.

ʺ[T]here may be circumstances when we reverse a sentence in which the

spirit of the mandate requires de novo sentencing, for example when the reversal

effectively undoes the entire knot of calculation . . . .ʺ United States v. Quintieri,

(2d Cir. 2002) (internal quotation marks and citation omitted). Further, ʺwe

have upheld the authority of a sentencing court to revise upward one component of a

sentence after another component was held to have been invalidly imposed.ʺ United

States v. Versaglio,

, 949‐50 (2d Cir. 1996). Here, Stasior asked, in lieu of

incarceration, for ʺan enormous amount of community service,ʺ suggesting ʺanother

7 thousand hours of workʺ because ʺ[t]hatʹs the kind of thing that would make an

enormous impact on [Stasior].ʺ Appʹx at 235. The district court ultimately imposed a

custodial sentence of one year and a day, well below the guidelines range of 30‐37

months, coupled with a term of supervised release that included substantial community

service. The district courtʹs decisions as to the term of imprisonment and the extent of

community service may very well have been intertwined, and we leave it to the

experienced district court to determine whether the ʺknot of calculationʺ should be

undone and to decide what new sentence is appropriate. Quintieri,

.

Accordingly, we remand to the district court for plenary resentencing.

* * *

For the foregoing reasons, we VACATE the judgment in part and

REMAND for plenary resentencing. The governmentʹs motions for judicial notice of

and to seal certain materials from a state court proceeding are DENIED, as the

government may present the materials to the district court to consider in the first

instance on remand. Stasior filed a motion to withdraw this appeal on December 12,

2019; the motion is denied.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

8